422 U.S.

590
95 S.Ct. 2254
45 L.Ed.2d 416

Richard BROWN, Petitioner,

v.
State of ILLINOIS.
No. 736650.
Argued March 18, 1975.
Decided June 26, 1975.

Syllabus
Petitioner, who had been arrested without probable cause and without a
warrant, and under circumstances indicating that the arrest was
investigatory, made two in-custody inculpatory statements after he had
been given the warnings prescribed by Miranda v. Arizona, 384 U.S. 436,
86 S.Ct. 1602, 16 L.Ed.2d 694. Thereafter indicted for murder, petitioner
filed a pretrial motion to suppress the statements. The motion was
overruled and the statements were used in the trial, which resulted in
petitioner's conviction. The State Supreme Court, though recognizing the
unlawfulness of petitioner's arrest, held that the statements were
admissible on the ground that the giving of the Miranda warnings served
to break the causal connection between the illegal arrest and the giving of
the statements, and petitioner's act in making the statements was
'sufficiently an act of free will to purge the primary taint of the unlawful
invasion.' Wong Sun v. United States, 371 U.S. 471, 486, 83 S.Ct. 407,
416, 9 L.Ed.2d 441. Held:
1. The Illinois courts erred in adopting a per se rule that Miranda warnings
in and of themselves broke the causal chain so that any subsequent
statement, even one induced by the continuing effects of unconstitutional
custody, was admissible so long as, in the traditional sense, it was
voluntary and not coerced in violation of the Fifth and Fourteenth
Amendments. When the exclusionary rule is used to effectuate the Fourth
Amendment, it serves interests and policies that are distinct from those it
serves under the Fifth, being directed at all unlawful searches and
seizures, and not merely those that happen to produce incriminating

material or testimony as fruits. Thus, even if the statements in this case

were found to be voluntary under the Fifth Amendment, the Fourth
Amendment issue remains. Wong Sun requires not merely that a statement
meet the Fifth Amendment voluntariness standard but that it be
'sufficiently an act of free will to purge the primary taint' in light of the
distinct policies and interests of the Fourth Amendment. Pp. 600-603.
2. The question whether a confession is voluntary under Wong Sun must
be answered on the facts of each case. Though the Miranda warnings are
an important factor in resolving the issue, other factors must be
considered; and the burden of showing admissibility of in-custody
statements of persons who have been illegally arrested rests on the
prosecutor. Pp. 603-604.
3. The State failed to sustain its burden in this case of showing that
petitioner's statements were admissible under Wong Sun. Pp. 604-605.
56 Ill.2d 312, 307 N.E.2d 356, reversed and remanded.
Robert P. Isaacson, Lincolnwood, Ill., for petitioner, pro hac vice, by
special leave of Court.
Jayne A. Carr, Oak Park, Ill., for respondent.
Mr. Justice BLACKMUN delivered the opinion of the Court.

This case lies at the crossroads of the Fourth and the Fifth Amendments.
Petitioner was arrested without probable cause and without a warrant. He was
given, in full, the warnings prescribed by Miranda v. Arizona, 384 U.S. 436, 86
S.Ct. 1602, 16 L.Ed.2d 694 (1966). Thereafter, while in custody, he made two
inculpatory statements. The issue is whether evidence of those statements was
properly admitted, or should have been excluded, in petitioner's subsequent trial
for murder in state court. Expressed another way, the issue is whether the
statements were to be excluded as the fruit of the illegal arrest, or were
admissible because the giving of the Miranda warnings sufficiently attenuated
the taint of the arrest. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct.
407, 9 L.Ed.2d 441 (1963). The Fourth Amendment, of course, has been held to
be applicable to the states through the Fourteenth Amendment. Mapp v. Ohio,
367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).

* As petitioner Richard Brown was climbing the last of the stairs leading to the
rear entrance of his Chicago apartment in the early evening of May 13, 1968, he

happened to glance at the window near the door. He saw, pointed at him
through the window, a revolver held by a stranger who was inside the
apartment. The man said: 'Don't move, you are under arrest.' App. 42. Another
man, also with a gun, came up behind Brown and repeated the statement that he
was under arrest. It was about 7:45 p.m. The two men turned out to be
Detectives William Nolan and William Lenz of the Chicago police force. It is
not clear from the record exactly when they advised Brown of their identity, but
it is not disputed that they broke into his apartment, searched it, and then
arrested Brown, all without probable cause and without any warrant, when he
arrived. They later testified that they made the arrest for the purpose of
questioning Brown as part of their investigation of the murder of a man named
Roger Corpus.
3

Corpus was murdered one week earlier, on May 6, with a .38-caliber revolver in
his Chicago West Side second-floor apartment. Shortly thereafter, Detective
Lenz obtained petitioners' name, among others, from Corpus' brother. Petitioner
and the others were identified as acquaintances of the victim, not as suspects.1

On the day of petitione's arrest, Detectives Lenz and Nolan, armed with a
photograph of Brown, and another officer arrived at petitioner's apartment
about 5 p.m. App. 77, 78. While the third officer covered the front entrance
downstairs, the two detectives broke into Brown's apartment and searched it.
Id., at 86. Lenz then positioned himself near the rear door and watched through
the adjacent window which opened onto the back porch. Nolan sat near the
front door. He described the situation at the later suppression hearing:

'After we were there for a while, Detective Lenz told me that somebody was
coming up the back stairs. I walked out the front door through the hall and
around the corner, and I stayed there behind a door leading on the the back
porch. At this time I heard Detective Lenz say, 'Don't move, you are under
arrest.' I looked out. I saw Mr. Brown backing away from the window. I walked
up behind him, I told him he is under arrest, come back inside the apartment
with us.' Id., at 42.

As both officers held him at gunpoint, the three entered the apartment. Brown
was ordered to stand against the wall and was searched. No weapon was found.
Id., at 93. He was asked his name. When he denied being Richard Brown,
Detective Lenz showed him the photograph, informed him that he was under
arrest for the murder of Roger Corpus, id., at 16, handcuffed him, id., at 93, and
escorted him to the squad car.

The two detectives took petitioner to the Maxwell Street police station. During

The two detectives took petitioner to the Maxwell Street police station. During
the 20-minute drive Nolan again asked Brown, who then was sitting with him
in the back seat of the car, whether his name was Richard Brown and whether
he owned a 1966 Oldsmobile. Brown alternately evaded these questions or
answered them falsely. Tr. 74. Upon arrival at the station house Brown was
placed in the second-floor central interrogation room. The room was bare,
except for a table and four chairs. He was left alone, apparently without
handcuffs, for some minutes while the officers obtained the file on the Corpus
homicide. They returned with the file, sat down at the table, one across from
Brown and the other to his left, and spread the file on the table in front of him.
App. 19.

The officers warned Brown of his rights under Miranda.2 Ibid. They then
informed him that they knew of an incident that had occurred in a poolroom on
May 5, when Brown, angry at having been cheated at dice, fired a shot from a
revolver into the ceiling. Brown answered: 'Oh, you know about that.' Id., at
20. Lenz informed him that a bullet had been obtained from the ceiling of the
poolroom and had been taken to the crime laboratory to be compared with
bullets taken from Corpus' body.3 Ibid. Brown responded: 'Oh, you know that,
too.' Id., at 2021. At this point it was about 8:45 p.m.Lenz asked Brown
whether he wanted to talk about the Corpus homicide. Petitioner answered that
he did. For the next 20 to 25 minutes Brown answered questions put to him by
Nolan, as Lenz typed. Id., at 2123.

This questioning produced a two-page statement in which Brown

acknowledged that he and a man named Jimmy Claggett visited Corpus on the
evening of May 5; that the three for some time sat drinking and smoking
marihuana; that Claggett ordered him at gunpoint to bind Corpus' hands and
feet with cord from the headphone of a stereo set; and that Claggett, using a .38caliber revolver sold to him by Brown, shot Corpus three times through a
pillow. The statement was signed by Brown. Id., at 9, 38.

10

About 9:30 p.m. the two detectives and Brown left the station house to look for
Claggett in an area of Chicago Brown knew him to frequent. They made a tour
of that area but did not locate their quarry. They then went to police
headequarters where they endeavored, without success, to obtain a photograph
of Claggett. They resumed their searchit was now about 11 p.m.and they
finally observed Claggett crossing at an intersection. Lenz and Nolan arrested
him. All four, the two detectives and the two arrested men, returned to the
Maxwell Street station about 12:15 a.m. Id., at 39.

11

Brown was again placed in the interrogation room. He was given coffee and

was left alone, for the most part, until 2 a.m. when Assistant State's Attorney
Crilly arrived.
12

Crilly, too, informed Brown of his Miranda rights. After a half hour's
conversation, a court reporter appeared. Once again the Miranda warnings were
given: 'I read him the card.' Id., at 30. Crilly told him that he 'was sure he would
be charged with murder.' Id., at 32. Brown gave a second statement, providing a
factual account of the murder substantially in accord with his first statement,
but containing factual inaccuracies with respect to his personal background.4
When the statement was completed, at about 3 a.m., Brown refused to sign it.
Id., at 57. An hour later he made a phone call to his mother. At 9:30 that
morning, about 14 hours after his arrest, he was taken before a magistrate.

13

On June 20 Brown and Claggett were jointly indicated by a Cook County grand
jury for Corpus' murder. Prior to trial, petitioner moved to suppress the two
statements he had made. He alleged that his arrest and detention had been
illegal and that the statements were taken from him in violation of his
constitutional rights. After a hearing, the motion was denied. R. 46.

14

The case proceeded to trial. The State introduced evidence of both statements.
Detective Nolan testified as to the contents of the first. App. 8992, but the
writing itself was not placed in evidence. The second statement was introduced
and was read to the jury in full. Tr. 509528. Brown was 23 at the time of the
trial. Id., at 543.

15

The jury found petitioner guilty of murder. R. 80. He was sentenced to

imprisonment for not less than 15 years nor more than 30 years. Id., at 83.

16

On appeal, the Supreme Court of Illinois affirmed the judgment of conviction.

56 Ill.2d 312, 307 N.E.2d 356 (1974). The court refused to accept the State's
argument that Brown's arrest was lawful. 'Upon review of the record, we
conclude that the testimony fails to show that at the time of his apprehension
there was probable cause for defendant's arrest, (and) that his arrest was,
therefore, unlawful.' Id., at 315, 307 N.E. 2d at 357. But it went on to hold in
two significant and unembellished sentences:

17

'(W)e conclude that the giving of the Miranda warnings, in the first instance by
the police officer and in the second by the assistant State's Attorney, served to
break the causal connection between the illegal arrest and the giving of the
statements, and that defendant's act in making the statements was 'sufficiently
an act of free will to purge the primary taint of the unlawful invasion.' (Wong

Sun v. United States, 371 U.S. 471, at 486, 83 S.Ct. at 416, 9 L.Ed.2d 441.) We
hold, therefore, that the circuit court did not err in admitting the statements into
evidence.' Id., at 317, 307 N.E.2d, at 358.
18

Aside from its reliance upon the presence of the Miranda warnings, no specific
aspect of the record or of the circumstances was cited by the court in support of
its conclusion. The court, in other words, appears to have held that the Miranda
warnings in and of themselves broke the causal chain so that any subsequent
statement, even one induced by the continuing effects of unconstitutional
custody, was admissible so long as, in the traditional sense, it was voluntary
and not coerced in violation of the Fifth and Fourteenth Amendments.

19

Because of our concern about the implication of our holding in Wong Sun v.
United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), to the facts of
Brown's case, we granted certiorari. 419 U.S. 894, 95 S.Ct. 172, 42 L.Ed.2d
138 (1974).

II
20

In Wong Sun, the Court pronounced the principles to be applied where the
issue is whether statements and other evidence obtained after an illegal arrest or
search should be excluded. In that case, federal agents elicited an oral statement
from defendant Toy after forcing entry at 6 a.m. into his laundry, at the back of
which he had his living quarters. The agents had followed Toy down the hall to
the bedroom and there had placed him under arrest. The Court of Appeals
found that there was no probable cause for the arrest. This Court concluded that
that finding was 'amply justified by the facts clearly shown on this record.' 371
U.S., at 479, 83 S.Ct., at 413. Toy's statement, which bore upon his
participation in the sale of narcotics, led the agents to question another person,
Johnny Yee, who actually possessed narcotics. Yee stated that heroin had been
brought to him earlier by Toy and another Chinese known to him only as 'Sea
Dog.' Under questioning, Toy said that 'Sea Dog' was Wong Sun. Toy led
agents to a multifamily dwelling where, he said, Wong Sun lived. Gaining
admittance to the building through a bell and buzzer, the agents claimbed the
stairs and entered the apartment. One went into the back room and brought
Wong Sun out in handcuffs. After arraignment, Wong Sun was released on his
own recognizance. Several days later, he returned voluntarily to give an
unsigned confession.

21

This Court ruled that Toy's declarations and the contraband taken from Yee
were the fruits of the agents' illegal action and should not have been admitted as
evidence against Toy. Id., at 484 488, 83 S.Ct., at 416. It held that the statement

did not result from "an intervening independent act of a free will," and that it
was not 'sufficiently an act of free will to purge the primary taint of the
unlawful invasion' Id., at 486, 83 S.Ct., at 416. With respect to Wong Sun's
confession, however, the Court held that in the light of his lawful arraignment
and release on his own recognizance, and of his return voluntarily several days
later to make the statement, the connection between his unlawful arrest and the
statement 'had 'become so attenuated as to dissipute the taint.' Nardone v.
United States, 308 U.S. 338, 341, 60 S.Ct. 266, 84 L.Ed. 307.' Id., at 491, 83
S.Ct., at 419. The Court said:
22

'We need not hold that all evidence is 'fruit of the poisonous tree' simply
because it would not have come to light but for the illegal actions of the police.
Rather, the more apt question in such a case is 'whether, granting establishment
of the primary illegality, the evidence to which instant objection is made has
been come at by exploitation of that illegality or instead by means sufficiently
distinguishable to be purged of the primary taint.' Maguire, Evidence of Guilt,
221 (1959).' Id., at 487 488, 83 S.Ct., at 417.

23

The exclusionary rule thus was applied in Wong Sun primarily to protect
Fourth Amendment rights. Protection of the Fifth Amendment right against
self-incrimination was not the Court's paramount concern there. To the extent
that the question whether Toy's statement was voluntary was considered, it was
only to judge whether it 'was sufficiently an act of free will to purge the
primary taint of the unlawful invasion. Id., at 486, 83 S.Ct., at 416 (emphasis
added).

24

The Court in Wong Sun, as is customary, emphasized that application of the

exclusionary rule on Toy's behalf protected Fourth Amendment guarantees in
two respects: 'in terms of deterring lawless conduct by federal officers,' and by
'closing the doors of the federal courts to any use of evidence unconstitutionally
obtained.' Ibid. These considerations of deterrence and of judicial integrity, by
now, have become rather commonplace in the Court's cases. See, e.g., United
States v. Peltier, 442 U.S. 531, 535538, 95 S.Ct. 2313, 23162318, 45
L.Ed.2d 374; United States v. Calandra, 414 U.S. 338, 347, 94 S.Ct. 613, 619,
38 L.Ed.2d 561 (1974); Terry v. Ohio, 392 U.S. 1, 1213, 2829, 88 S.Ct.
1868, 1875, 20 L.Ed.2d 889 (1968). 'The rule is calculated to prevent, not to
repair. Its purpose is to deterto compel respect for the constitutional guaranty
in the only effectively available wayby removing the incentive to disregard
it.' Elkins v. United States, 364 U.S. 206, 217, 80 S.Ct. 1437, 1444, 4 L.Ed.2d
1669 (1960). But '(d)espite its broad deterrent purpose, the exclusionary rule
has never been interpreted to proscribe the use of illegally seized evidence in all
proceedings or against all persons.' United States v. Calandra, 414 U.S., at 348,

94 S.Ct. at 620. See also Michigan v. Tucker, 417 U.S. 433, 446447, 94 S.Ct.
2357, 2360, 41 L.Ed.2d 182 (1974).5
III
25

The Illinois courts refrained from resolving the question, as apt here as it was in
Wong Sun, whether Brown's statements were obtained by exploitation of the
illegality of his arrest. They assumed that the Miranda warnings, by
themselves, assured that the statements (verbal acts, as contrasted with physical
evidence) were of sufficient free will as to purge the primary taint of the
unlawful arrest. Wong Sun, of course, preceded Miranda.

26

This Court has described the Miranda warnings as a 'prophylactic rule,'

Michigan v. Payne, 412 U.S. 47, 53, 93 S.Ct. 1966, 1969, 36 L.Ed.2d 736
(1973), and as a 'procedural safeguard,' Miranda v. Arizona, 384 U.S., at 457,
478, 86 S.Ct. at 1629, employed to protect Fifth Amendment rights against 'the
compulsion inherent in custodial surroundings.' Id., at 458, 86 S.Ct. at 1619.
The function of the warnings relates to the Fifth Amendment's guarantee
against coerced self-incrimination, and the exclusion of a statement made in the
absence of the warnings, it is said, serves to deter the taking of an incriminating
statement without first informing the individual of his Fith Amendment rights.

27

Although, almost 90 years ago, the Court observed that the Fifth Amendment is
in 'intimate relation' with the Fourth, Boyd v. United States, 116 U.S. 616, 633,
6 S.Ct. 524, 533, 29 L.Ed. 746 (1886), the Miranda warnings thus far have not
been regarded as a means either of remedying or deterring violations of Fourth
Amendment rights. Frequently, as here, rights under the two Amendments may
appear to coalesce since 'the 'unreasonable searches and seizures' condemned in
the Fourth Amendment are almost always made for the purpose of compelling
a man to give evidence against himself, which in criminal cases is condemned
in the Fifth Amendment.' Ibid.; see Mapp v. Ohio, 367 U.S., at 646 n. 5, 81
S.Ct. at 1687. The exclusionary rule, however, when utilized to effectuate the
Fourth Amendment, serves interests and policies that are distinct from those it
serves under the Fifth. It is directed at all unlawful searches and seizures, and
not merely those that happen to produce incriminating material or testimony as
fruits. In short, exclusion of a confession made without Miranda warnings
might be regarded as necessary to effectuate the Fifth Amendment, but it would
not be sufficient fully to protect the Fourth. Miranda warnings, and the
exclusion of a confession made without them, do not alone sufficiently deter a
Fourth Amendment violation. 6

28

Thus, even if the statements in this case were found to be voluntary under the

Fifth Amendment, the Fourth Amendment issue remains. In order for the
causal chain, between the illegal arrest and the statements made subsequent
thereto, to be broken. Wong Sun requires not merely that the statement meet the
Fifth Amendment standard of voluntariness but that it be 'sufficiently an act of
free will to purge the primary taint.' 371 U.S. at 486, 83 S.Ct. at 416. Wong Sun
thus mandates consideration of a statement's admissibility in light of the distinct
policies and interests of the Fourth Amendment.
29

If Miranda warnings, by themselves, were held to attenuate the taint of an

unconstitutional arrest, regardless of how wanton and purposeful the Fourth
Amendment violation, the effect of the exclusionary rule would be substantially
diluted. See Davis v. Mississippi, 394 U.S. 721, 726727, 89 S.Ct. 1394,
1397, 22 L.Ed.2d 676 (1969). Arrests made without warrant or without
probable cause, for questioning or 'investigation,' would be encouraged by the
tknowledge that evidence derived therefrom could well be made admissible at
trial by the simple expendent of giving Miranda warnings.7 Any incentive to
avoid Fourth Amendment violations would be eviscerated by making the
warnings, in effect, a 'cure-all,' and the constitutional guarantee against
unlawful searches and seizures could be said to be reduced to 'a form of words.'
See Mapp v. Ohio, 367 U.S., at 648, 81 S.Ct. at 1687.

30

It is entirely possible, of course, as the State here argues, that persons arrested
illegally frequently may decide to confess, as an act of free will unaffected by
the initial illegality. But the Miranda warnings, alone and per se, cannot always
make the act sufficiently a product of free will be break, for Fourth
Amendment purposes, the causal connection between the illegality and the
confession. They cannot assure in every case that the Fourth Amendment
violation has not been unduly exploited. See Westover v. United States, 384
U.S. 436, 496497, 86 S.Ct. 1602, 1639, 16 L.Ed.2d 694 (1966).

31

While we therefore reject the per se rule which the Illinois courts appear to
have accepted, we also decline to adopt any alternative per se or 'but for' rule.
The petitioner himself professes not to demand so much. Tr. of Oral Arg. 12,
45, 47. The question whether a confession is the product of a free will under
Wong Sun must be answered on the facts of each case. No single fact is
dispositive. The workings of the human mind are too complex, and the
possibilities of misconduct too diverse, to permit protection of the Fourth
Amendment to turn on such a talismanic test. The Miranda warnings are an
important factor, to be sure, in determining whether the confession is obtained
by exploitation of an illegal arrest. But they are not the only factor to be
considered. The temporal proximity of the arrest and the confession,8 the
presence of intervening circumstances, see Johnson v. Louisiana, 406 U.S. 356,

365, 92 S.Ct. 1620, 1626, 32 L.Ed.2d 152 (1972), and, particularly, the purpose
and flagrancy of the official misconduct9 are all relevant. See Wong Sun v.
United States, 371 U.S., at 491, 83 S.Ct. at 419. The voluntariness of the
statement is a threshold requirement. Cf. 18 U.S.C. 3501. And the burden of
showing admissibility rests, of course, on the prosecution.10
IV
32

Although the Illinois courts failed to undertake the inquiry mandated by Wong
Sun to evaluate the circumstances of this case in the light of the policy served
by the exclusionary rule, the trial resulted in a record of amply sufficient detail
and depth from which the determination may be made. We therefore decline
the suggestion of the United States, as amicus curiae, see Morales v. New York,
396 U.S. 102, 90 S.Ct. 291, 24 L.Ed.2d 299 (1969), to remand the case for
further factual findings. We conclude that the State failed to sustain the burden
of showing that the evidence in question was admissible under Wong Sun.

33

Brown's first statement was separated from his illegal arrest by less than two
hours, and there was no intervening event of significance whatsoever. In its
essentials, his situation is remarkably like that of James Wah Toy in Wong
Sun.11 We could hold Brown's first statement admissible only if we overrule
Wong Sun. We decline to do so. And the second statement was clearly the
result and the fruit of the first.12

34

The illegality here, moreover, had a quality of purposefulness. The imporpriety

of the arrest was obvious; awareness of that fact was virtually conceded by the
two detectives when they repeatedly acknowledged, in their testimony, that the
purpose of their action was 'for investigation' or for 'questioning.'13 App. 35, 43,
78, 81, 83, 88, 89, 94. The arrest, both in design and in execution, was
investigatory. The detectives embarked upon this expedition for evidence in the
hope that something might turn up. The manner in which Brown's arrest was
affected gives the appearance of having been calculated to cause surprise,
fright, and confusion.

35

We emphasize that our holding is a limited one. We decide only that the Illinois
courts were in error in assuming that the Miranda warnings, by themselves,
under Wong Sun always purge the taint of an illegal arrest.

36

The judgment of the Supreme Court of Illinois is reversed and the case is
remanded for further proceedings not inconsistent with this opinion.

37

It is so ordered.

37

It is so ordered.
Judgment reversed and

38

Case remanded.

39

Mr. Justice WHITE, concurring in the judgment.

40

Insofar as the Court holds (1) that despite Miranda warnings the Fourth and
Fourteenth Amendments require the exclusion from evidence of statements
obtained as the fruit of an arrest which the arresting officers knew or should
have known was without probable cause and unconstitutional, and (2) that the
statements obtained in this case were in this category, I am in agreement and
therefore concur in the judgment.

41

Mr. Justice POWELL, with whom Mr. Justice REHNQUIST joins, concurring
in part.

42

I join the Court insofar as it holds that the per se rule adopted by the Illinois
Supreme Court for determining the admissibility of petitioner's two statements
inadequately accommodates the diverse interests underlying the Fourth
Amendment exclusionary rule. I would, however, remand the case for
reconsideration under the general standards articulated in the Court's opinion
and elaborated herein.

A.
43

The issue presented in this case turns on proper application of the policies
underlying the Fourth Amendment exclusionary rule, not on the Fifth
Amendment or the prophylaxis added to that guarantee by Miranda v. Arizona,
384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).1 The Court recognized in
Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963),
that the Fourth Amendment exclusionary rule applies to statements obtained
following an illegal arrest just as it does to tangible evidence seized in a similar
manner or obtained pursuant to an otherwise illegal search and seizure. Wong
Sun squarely rejected, however, the suggestion that the admissibility of
statements so obtained should be governed by a simple 'but for' test that would
render inadmissible all statements given subsequent to an illegal arrest. Id., at
487488, 83 S.Ct. at 417. In a similar manner, the Court today refrains from
according dispositive weight to the single factor of Miranda warnings. I agree
with each holding. Neither of the rejected extremes adequately recognizes the
competing considerations involved in a determination to exclude evidence after

finding that official possession of that evidence was to some degree caused by a
violation of the Fourth Amendment.
44

On this record, I cannot conclude as readily as the Court that admission of the
statements here at issue would constitute an effective overruling of Wong Sun.
See ante, at 604-605. Although Wong Sun establishes the boundaries within
which this case must be decided, the incompleteness of the record leaves me
uncertain that it compels the exclusion of petitioner's statements. The statements
at issue in Wong Sun were on the temporal extremes in relation to the illegal
arrest. Cf. Collins v. Beto, 348 F.2d 823, 832, 834836 (CA5 1965) (Friendly,
J., concurring). Toy's statement was obtained immediately after his pursuit and
arrest by six agents. It appears to have been a spontaneous response to a
question put to him in the frenzy of that event, and there is no indication that
the agents made any attempt to inform him of his right to remain silent. Wong
Sun's statement, by contrast, was not given until after he was arraigned and
released on his own recognizance. Wong Sun voluntarily returned to the station
a few days after the arrest for questioning. His statement was preceded by an
official warning of his right to remain silent and to have counsel if he desired.2
The Court rejected the Government's assertion that Toy's statement resulted
from an independent act of free will sufficient to purge the consequences of the
illegal arrest. Wong Sun's statement, however, was deemed admissible. Given
the circumstances in which Wong Sun's statement was obtained, the Court
concluded that 'the connection between the arrest and the statement had
'become so attenuated as to dissipate the taint." 371 U.S., at 491, 83 S.Ct., at
419.

45

Like most cases in which the admissibility of statements obtained subsequent to

an illegal arrest is contested, this case concerns statements more removed than
that of Toy from the time and circumstances of the illegal arrest. Petitioner
made his first statement some two hours following his arrest, after he had been
given Miranda warnings. The Court is correct in noting that no other significant
intervening event altered the relationship established between petitioner and the
officers by the illegal arrest. But the Court's conclusion that admission of this
statement could be allowed only by overruling Wong Sun rests either on an
overly restrictive interpretation of the attenuation doctrine, to which I cannot
subscribe, or on its view that the arrest was made for investigatory purposes, a
factual determination that I think more appropriately should have been left for
decision in the first instance by the state courts.

B
46

The Court's rejection in Wong Sun of a 'but for' test, reaffirmed today, ante, at

603-604, recognizes that in some circumstances strict adherence to the Fourth

Amendment exclusionary rule imposes greater cost on the legitimate demands
of law enforcement than can be justified by the rule's deterrent purposes. The
notion of the 'dissipation of the taint' attempts to mark the point at which the
detrimental consequences of illegal police action become so attenuated that the
deterrent effect of the exclusionary rule no longer justifies its cost. Application
of the Wong Sun doctrine will generate fact-specific cases bearing distinct
differences as well as similarities, and the question of attenuation inevitably is
largely a matter of degree. The Court today identifies the general factors that
the trial court must consider in making this determination. I think it appropriate,
however, to attempt to articulate the possible relationships to those factors in
particular, broad categories of cases.
47

All Fourth Amendment violations are, by constitutional definition,

'unreasonable.' There are, however, significant practical differences that
distinguish among violations, differences that measurably assist in identifying
the kinds of cases in which disqualifying the evidence is likely to serve the
deterrent purposes of the exclusionary rule. Cf. United States v. Calandra, 414
U.S. 338, 347348, 94 S.Ct. 613, 615, 38 L.Ed.2d 561 (1974); Schneckloth v.
Bustamonte, 412 U.S. 218, 250, 93 S.Ct. 2041, 2053, 36 L.Ed.2d 854 (1973)
(Powell, J., concurring). In my view, the point at which the taint can be said to
have dissipated should be related, in the absence of other controlling
circumstances, to the nature of that taint.

48

That police have not succeeded in coercing the accused's confession through
willful or negligent misuse of the power of arrest does not remove the fact that
they may have tried. The impermissibility of the attempt, and the extent to
which such attempts can be deterred by the use of the exclusionary rule, are of
primary relevance in determining whether exclusion is an appropriate remedy.
The basic purpose of the rule, briefly stated, is to remove possible motivations
for illegal arrests. Given this purpose the notion of voluntariness has practical
value in deciding whether the rule should apply to statements removed from the
immediate circumstances of the illegal arrest. If an illegal arrest merely
provides the occasion of initial contact between the police and the accused, and
because of time or other intervening factors the accused's eventual statement is
the product of his own reflection and free will, application of the exclusionary
rule can serve little purpose: the police normally will not make an illegal arrest
in the hope of eventually obtaining such a truly volunteered statement. In a
similar manner, the role of the Miranda warnings in the Wong Sun inquiry is
indirect. To the extent that they dissipate the psychological pressures of
custodial interrogation, Miranda warnings serve to assure that the accused's
decision to make a statement has been relatively unaffected by the preceding

illegal arrest. Correspondingly, to the extent that the police perceive Miranda
warnings to have this equalizing potential, their motivation to abuse the power
of arrest is diminished. Bearing these considerations in mind, and recognizing
that the deterrent value of the Fourth Amendment exclusionary rule is limited
to certain kinds of police conduct, the following general categories can be
identified.
49

Those most readily identifiable are on the extremes: the flagrantly abusive
violation of Fourth Amendment rights, on the one hand, and 'technical' Fourth
Amendment violations, on the other. In my view, these extremes call for
significantly different judicial responses.

50

I would require the clearest indication of attenuation in cases in which official

conduct was flagrantly abusive of Fourth Amendment rights. If, for example,
the factors relied on by the police in determining to make the arrest were so
lacking in indicia of probable cause as to render official belief in its existence
entirely unreasonable, or if the evidence clearly suggested that the arrest was
effectuated as a pretext for collateral objectives, cf. United States v. Robinson,
414 U.S. 218, 237, 238 n. 2, 94 S.Ct. 467, 470, 38 L.Ed.2d 427 (1973) (Powell,
J., concurring), or the physical circumstances of the arrest unnecessarily
intrusive on personal privacy, I would consider the equalizing potential of
Miranda warnings rarely sufficient to dissipate the taint. In such cases the
deterrent value of the exclusionary rule is most likely to be effective, and the
corresponding mandate to preserve judicial integrity, see United States v.
Peltier, 422 U.S. 531, 95 S.Ct. 2313, 45 L.Ed.2d 374 (1975); Michigan v.
Tucker, 417 U.S. 433, 450 n. 25, 94 S.Ct. 2357, 2367, 41 L.Ed.2d 182 (1974),
most clearly demands that the fruits of official misconduct be denied. I thus
would require some demonstrably effective break in the chain of events leading
from the illegal arrest to the statement, such as actual consultation with counsel
or the accused's presentation before a magistrate for a determination of
probable cause, before the taint can be deemed removed, see Gerstein v. Pugh,
420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975); cf. Johnson v. Louisiana,
406 U.S. 356, 365, 92 S.Ct. 1620, 1626, 32 L.Ed.2d 152 (1972); Parker v.
North Carolina, 397 U.S. 790, 796, 90 S.Ct. 1458, 1462, 25 L.Ed.2d 785
(1970).

51

At the opposite end of the spectrum lie 'technical' violations of Fourth

Amendment rights where, for example, officers in good faith arrest an
individual in reliance on a warrant later invalidated3 or pursuant to a statute that
subsequently is declared unconstitutional, see United States v. Kilgen, 445 F.2d
287 (CA5 1971). As we noted in Michigan v. Tucker, supra, 417 U.S., at 447,
94 S.Ct., at 2365: 'The deterrent purpose of the exclusionary rule necessarily

assumes that the police have engaged in willful, or at the very least negligent,
conduct which has deprived the defendant of some right.' In cases in which this
underlying premise is lacking, the deterrence rationale of the exclusionary rule
does not obtain, and I can see no legitimate justification for depriving the
prosecution of reliable and probative evidence. Thus, with the exception of
statements given in the immediate circumstances of the illegal arresta
constraint I think is imposed by existing exclusionary-rule lawI would not
require more than proof that effective Miranda warnings were given and that
the ensuing statement was voluntary in the Fifth Amendment sense. Absent
aggravating circumstances, I would consider a statement given at the station
house after one has been advised of Miranda rights to be sufficiently removed
from the immediate circumstances of the illegal arrest to justify its admission at
trial.
52

Between these extremes lies a wide range of situations that defy ready
categorization, and I will not attempt to embellish on the factors set forth in the
Court's opinion other than to emphasize that the Wong Sun inquiry always
should be conducted with the deterrent purpose of the Fourth Amendment
exclusionary rule sharply in focus. See ALI Model Code of Pre-Arraignment
Procedure, Art. 150, p. 54 et seq. and Commentary thereon, p. 375 et seq.
(Prop. Off. Draft 1975). And, in view of the inevitably fact-specific nature of
the inquiry, we must place primary reliance on the 'learning, good sense,
fairness and courage' of judges who must make the determination in the first
instance. Nardone v. United States, 308 U.S. 338, 342, 60 S.Ct. 266, 268, 84
L.Ed. 307 (1939). See ante, at 604 n. 10.

C
53

On the facts of record as I view them, it is possible that the police may have
believed reasonably that there was probable cause for petitioner's arrest.
Although the trial court conducted hearings on petitioner's motion to suppress
and received his testimony and that of the arresting officers, its inquiry focused
on determining whether petitioner's statements were preceded by adequate
Miranda warnings and were made voluntarily. The court did not inquire into the
possible justification, actual or perceived, for the arrest. Indeed, numerous
questions addressed to the circumstances of the arrest elicited the State's
objection, which was sustained. App. 1415. The Illinois Supreme Court's
consideration of the factual basis for its ruling similarly failed to focus on these
relevant issues or to rest in any meaningful sense on the factors set forth in the
Court's opinion today. After determining that the officers lacked probable
cause for petitioner's arrest, the Illinois court concluded simply that
examination of the record persuaded it that 'the giving of Miranda warnings . . .

served to break the causal connection between the illegal arrest and the giving
of the statements.' 56 Ill.2d 312, 317, 307 N.E.2d 356, 358 (1974).
54

I am not able to conclude on this record that the officers arrested petitioner
solely for the purpose of questioning, ante, at 605; see also ante, at 606
(WHITE, J., concurring in judgment). To be sure, there is evidence suggesting,
as the Court notes, an investigatory arrest. The strongest evidence on that point
is the inconclusive testimony by the arresting officers themselves. But the
evidence is conflicting. Responding to questions as to what they told petitioner
upon his arrest, the officers testified he was advised that the arrest was for
investigation of murder. Responding to more pointed questions, however, one
of the arresting officers stated that he informed petitioner that he was being
arrested for murder. See App. 16.4

55

Moreover, other evidence of record indicates that the police may well have
believed that probable cause existed to think that petitioner committed the
crime of which he ultimately was convicted. As the opinion of the Illinois
Supreme Court reveals, petitioner had been identified as an acquaintance of the
deceased, and the police had been told that petitioner was seen in the building
where the deceased lived on the day of the murder. 56 Ill.2d, at 315, 307
N.E.2d, at 357. It is also plain that the investigation had begun to focus on
petitioner. For example, the police had gone to the trouble of obtaining a bullet
that petitioner had fired in an unrelated incident for the purpose of comparing it
with the bullets that killed the victim. App. 20. The officers also obtained
petitioner's photograph prior to seeking him out, and the circumstances of
petitioner's arrest indicate that their suspicions of him were quite pronounced.

56

The trial court made no determination as to whether probable cause existed for
petitioner's arrest.5 The Illinois Supreme Court resolved that issue, but did not
consider whether the officers might reasonably, albeit erroneously, have
thought that probable cause existed. Rather than decide those matters for the
first time at this level, I think it preferable to allow the state courts to reconsider
the case under the general guidelines expressed in today's opinions.6 I therefore
would remand for reconsideration7 with directions to conduct such further
factual inquiries as may be necessary to resolve the admissibility issue.

The brother, however, when asked at the trial whether any of the victim's
family suggested to the police that petitioner was possibly responsible for the
victim's death, answered: 'Nobody asked.' App. 74.

There is no assertion here that he did not understand those rights.

It was stipulated at the trial that if expert testimony were taken, it would be to
the effect that the bullet eventually was ascertained to be a 'wiped bullet,' that
is, that its sides were 'clean and therefore it was not ballistically comparable to
any other bullets, specifically the bullets taken from the body of the deceased,
Roger Corpus.' Tr. 543.

In response to questions from Mr. Crilly, Brown stated that he was employed at
E. I. Guffman Company in Niles, Ill., and that he was a punch press operator,
App. 97, whereas he later conceded that he worked at Arnold Schwinn Bicycle
Company and had never worked at any other place. Id., at 63. He also remarked
in the Crilly statement that he had completed three years of high school, id., at
96, whereas later he conceded that he 'never went to high school.' Id., at 58.

Members of the Court on occasion have indicated disenchantment with the rule.
See, e.g., Coolidge v. New Hampshire, 403 U.S. 443, 490, 91 S.Ct. 2022, 2050,
29 L.Ed.2d 564 (1971) (Harlan, J., concurring); id., at 492, 91 S.Ct., at 2051
(Burger, C.J., dissenting in part and concurring in part); id., at 493, 91 S.Ct., at
2051 (Black, J., concurring and dissenting); id., at 510, 91 S.Ct., at 2060
(White, J., concurring and dissenting); Bivens v. Six Unknown Federal
Narcotics Agents, 403 U.S. 388, 411, 91 S.Ct. 1999, 2012, 29 L.Ed.2d 619
(1971) (Burger, C.J., dissenting). Its efficacy has been subject to some dispute.
United States v. Calandra, 414 U.S. 338, 348, n. 5, 94 S.Ct. 613, 620, 38
L.Ed.2d 561 (1974). See Elkins v. United States, 364 U.S. 206, 218, 80 S.Ct.
1437, 1444, 4 L.Ed.2d 1669 (1960).

The Miranda warnings in no way inform a person of his Fourth Amendment

rights, including his right to be released from unlawful custody following an
arrest made without a warrant or without probable cause.

A great majority of the commentators have taken the same position. See, e.g.,
Pitler, 'The Fruit of the Poisonous Tree' Revisited and Shepardized, 56
Calif.L.Rev. 579, 603604 (1968); Ruffin, Out on a Limb of the
U.C.L.A.L.Rev. 32, 70 (1967); Comment, 1 Poisonous Tree: The Tainted
Witness, 15 Fla.St.L.Rev. 533, 539540 (1973); Note, Admissibility of
Confessions Made Subsequent to an Illegal Arrest: Wong Sun v. United States
Revisited, 61 J.Crim.L. 207, 212 n. 58 (1970); Comment, Scope of Taint Under
the Exclusionary Rule of the Fifth Amendment Privilege Against SelfIncrimination, 114 U.Pa.L.Rev. 570, 574 (1966). But see Comment, Voluntary
Incriminating Statements Made Subsequent to an Illegal ArrestA Proposed
Modification of the Exclusionary Rule, 71 Dick.L.Rev. 573, 582583 (1967).

See United States v. Owen, 492 F.2d 1100, 1107 (CA5), cert. denied, 419 U.S.

965, 95 S.Ct. 227, 42 L.Ed.2d 180 (1974); Hale v. Henderson, 485 F.2d 266,
267269 (CA6 1973), cert. denied, 415 U.S. 930, 94 S.Ct. 1442, 39 L.Ed.2d
489 (1974); United States v. Fallon, 457 F.2d 15, 1920 (CA10 1972);
Leonard v. United States, 391 F.2d 537, 538 (CA9 1968); Commonwealth of
Pennsylvania ex rel. Craig v. Maroney, 348 F.2d 22, 29 (CA3 1965).
9

See United States v. Edmons, 432 F.2d 577 (CA2 1970). See also United States
ex rel. Gockley v. Myers, 450 F.2d 232, 236 (CA3 1971), cert. denied, 404 U.S.
1063, 92 S.Ct. 738, 30 L.Ed.2d 752 (1972); United States v. Kilgen, 445 F.2d
287, 289 (CA5 1971).

10

Our approach relies heavily, but not excessively, on the 'learning, good sense,
fairness and courage of federal trial judges.' Nardone v. United States, 308 U.S.
338, 342, 60 S.Ct. 266, 268, 84 L.Ed. 307 (1939).

11

The situation here is thus in dramatic contrast to that of Wong Sun himself.
Wong Sun's confession, which the Court held admissible, came serveral days
after the illegality, and was preceded by a lawful arraignment and a release
from custody on his own recognizance. 371 U.S., at 491, 83 S.Ct. at 419.

12

The fact that Brown had made one statement, believed by him to be admissible,
and his cooperation with the arresting and interrogating officers in the search
for Claggett, with his anticipation of leniency, bolstered the pressures for him
to give the second, or at least vitiated any incentive on his part to avoid selfincrimination. Cf. Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d
171 (1963).

13

Detective Lenz had been a member of the Chicago police force for 14 years and
a detective for 12 years. App. 6. Detective Nolan had been a detective on the
force for 5 1/2 years. Id., at 87, 84 S.Ct. at 230.

Each of these guarantees provides an independent ground for suppression of

statements and thus may make it unnecessary in many cases to conduct the
inquiry mandated by Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9
L.Ed.2d 441 (1963).

Toy gave a second statement under circumstances similar to those in Wong

Sun's case. The Court did not, however, rule as to the admissibility of this
statement, finding instead that it lacked corroboration and was therefore
insufficient to support Toy's conviction. Wong Sun v. United States, 371 U.S.,
at 488491, 83 S.Ct. at 417.

I note that this resolution might have the added benefit of encouraging the
police to seek a warrant whenever possible. Cf. Gerstein v. Pugh, 420 U.S. 103,

113, 95 S.Ct. 854, 864, 43 L.Ed.2d 54 (1975), and sources cited therein.
4

The majority of the statements cited by the Court are the officers' responses to
questions inquiring as to what the officers told petitioner upon arresting him
and thus are only indirectly relevant to the issue whether the officers might
reasonably have thought they then had sufficient evidence to support a
probable-cause determination. Moreover, as noted above, that evidence is
contradictory. In only two instances during the trial did the inquiry relate more
directly to whether the officers arrested petitioner for questioning. App. 83, 94.
The officers' responses to those questions tend to support the Court's
conclusion. In view of the weight of the contrary evidence, however, I think
that the matter should be considered in the first instance by the state courts.

Petitioner's motion to suppress alleged that the police lacked reasonable

grounds for believing that he committed a crime. But the testimony at the
hearing focused primarily on the issue of the adequacy of the Miranda
warnings and the voluntariness of petitioner's statements. At the close of the
hearing the trial court ruled, without elaboration or findings of fact, that the
statements were admissible. Id., at 65. Conceivably the trial court thought that
probable cause existed to support the arrest. The State argued this point
unsuccessfully on appeal. Equally possible, the trial court might have
determined that the probable-cause issue was a close one and that, viewing the
totality of the circumstances with that fact in mind, the statement should be
admitted.

The Solicitor General has filed a memorandum as amicus curiae in which he

urges the Court to remand the case for further factual hearings, cf. Morales v.
New York, 396 U.S. 102, 90 S.Ct. 291, 24 L.Ed.2d 299 (1969). I concur in the
Court's rejection of this suggestion, agreeing that the record is adequate to
allow us to rule on the major issuewhether advice of Miranda rights
constitutes a per se attenuation of the taint of an illegal arrest in all cases. I do
not agree, however, that the record is adequate for the Court to rule, in addition,
that there was insufficient attenuation of taint in this case.

Petitioner's second statement, corroborative of the first, was given more than
six hours after his arrest and some five hours after the initial statement. During
this time petitioner cooperating with the policehad made two trips away from
the police headquarters in search of Claggett, whom he had identified as his
confederate in the murder. This second statement was given to an assistant
state's attorney who again had informed petitioner of his Miranda rights. The
Court deems this statement to be the fruit of the first one and thus excludable
along with it.

I also would leave the question of admissibility of this statement to the lower
Illinois courts. Of course, if the first statement were ruled admissible under the
general guidelines articulated in today's opinion, it would follow that the
second statement also would be admissible. In any event, the question whether
there was sufficient attenuation between the first and second statements to
render the second admissible in spite of the inadmissibility of the first presents
a factual issue which, like the factual issue underlying the possible admissibility
of the first statement, has not been passed on by the state courts.